Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | August 2017 | News Worker wins appeal for permanent impairment benefits Medical evidence showed worker suffered shoulder pain and limitations after reaching maximum medical recovery after being run over by co-worker BY JEFFREY R. SMITH AN ONTARIO worker has won an appeal for compensation for a permanent impairment of his shoulder after a workplace acci- dent where he was hit by a cart driven by a co-worker. The 61-year-old worker was a millwright. On May 5, 2012, a co-worker was driving a motor- ized cart in the plant and came too close to him. The worker tried to hold the cart off with his arm, but the cart lifted him off the ground and pinned him against a fence. The worker in- jured his right shoulder in the accident, which was diagnosed as a soft tissue injury. The Ontario Workplace Safe- ty and Insurance Board (WSIB) granted the worker compensa- tion for a personal injury stem- ming from an accident at work. The worker continued to have problems with his right shoulder and various medical examina- tions — including an MRI on June 1, 2012 — revealed that he had moderate-to-advanced osteoar- thritis, a cyst, and tendonitis in his rotator cuff. The worker claimed benefits for all of these conditions and also that the workplace acci- dent had permanently impaired his right shoulder. However, the WSIB found the worker's soft tissue injury had fully resolved by September 2012, four months after the ac- cident, and there was no perma- nent impairment. The worker was granted entitlement of health care benefits only up until Sept. 9. The worker appealed the de- cision and a WSIB appeals reso- lution officer found the worker was entitled to benefits for the tendonitis in his shoulder, as the condition was "compatible with the mechanism of injury" and likely related to the worker being hit by the cart. Since the worker underwent treatment for his ten- donitis until March 28, 2013, the officer ruled the worker should receive full loss-of-earnings benefits up to that date. However, the appeals resolu- tion officer also found the work- er's tendonitis resolved when his treatment ended, so he was not entitled to permanent im- pairment benefits after March 28, 2013. The officer also found the osteoarthritis and cyst were likely pre-existing conditions and not consistent with injury, so the worker wasn't entitled to benefits for those. The worker appealed to the Ontario Workplace Safety and Appeals Tribunal, claiming the osteoarthritis and cyst in his shoulder should be compensa- ble and his shoulder was perma- nently impaired as a result of the workplace accident. The tribunal found that the worker's MRI was less than one month after the workplace acci- dent and the osteoarthritis was "moderate-to-advanced." The tribunal noted that it is possible for the condition to be caused by trauma, but the advanced stage of it detected in the MRI made it more likely it was the degenera- tive-type of osteoarthritis. In ad- dition, none of the doctors who treated the worker expressed an opinion that the workplace acci- dent caused or significantly con- tributed to the condition. The tribunal found the same for the cyst. There were no med- ical opinions indicating that it was caused or aggravated by the workplace accident, and its pres- ence in the MRI less than one month after the accident meant it was probably there before, said the tribunal in upholding the de- nial of benefits for the osteoar- thritis and shoulder cyst. As for the worker's tendonitis, the tribunal agreed with the pre- vious decisions that the worker's tendonitis was caused by the workplace accident. The medical opinions from several examin- ers, including the worker's treat- ing orthopedic surgeon, indi- cated the nature of the condition was consistent with the work- place accident as described by the worker and in general could be caused by such an injury. The tribunal upheld the worker's en- titlement for compensation for tendonitis in his shoulder. The tribunal then looked at whether the worker's tendonitis qualified for benefits for a per- manent impairment. It referred to the definition of impairment — "a physical or functional ab- normality or loss (including dis- figurement) which results from an injury and any psychological damage arising from the abnor- mality or loss" — and permanent impairment — "impairment that continues to exist after the worker reaches maximum medi- cal recovery" — in the Ontario Workplace Safety and Insurance Act, 1997. A report from the orthopedic surgeon in Feburary 2013 stated that the tendonitis and related "shoulder girdle sprain" could be "extremely difficult to complete- ly get rid of." Medical reports following that one indicated the worker continued to have shoul- der pain after the injury, causing "significant disability." The tribunal also found the worker was "forthright and hon- est" in describing his injury and medical conditions and it was unlikely he was exaggerating the extent of his pain. It pointed to a Jan. 21, 2013, medical report that stated the worker had no shoulder pain before his accident and by that point had "reached a plateau in improvement." It also noted the worker had permanent restrictions on lifting, no lifting from waist to shoulder, and no bending or over-the-shoulder activities with the right shoulder. A March 24, 2014, report diag- nosed "chronic shoulder pain fol- lowing an accident" and he con- tinued to receive injections of a painkiller in the shoulder. Medical experts could not identify the specific origin of the worker's shoulder pain, but the tribunal found there was enough expert opinion to indicate the is- sue was ongoing and debilitating for the worker. "What is significant for pres- ent purposes, in my view, is that it is not necessary to identify a specific pathology in order for a worker to be entitled to benefits for a permanent impairment," the tribunal said. "In my opinion, the evidence is clear that follow- ing the workplace accident, the worker experienced a signifi- cant loss of function in his right shoulder." The tribunal found the worker reached maximum medical re- covery from the injury suffered in the workplace accident but still had a "sustained loss of func- tion" in his right shoulder. As a result, he had a permanent im- pairment that was entitled to on- going loss-of-earnings benefits. The tribunal upheld the ear- lier decisions denying benefits for osteoarthritis and the cyst in the worker's shoulder but grant- ing benefits for his tendonitis. It overturned the denial of benefits for permanent impairment from the tendonitis. For more information see: • Decision No. 1524/17, 2017 CarswellOnt 8646 (Ont. Workplace Safety & Appeals Trib.). Worker reached a 'plateau in improvement' but still had restrictions on his shoulder

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